Re: Performers' Right in Sound Recordings

Scott Fedewa writes:
>
> As I understand it, the "owner" of most sound recording copyrights is the
> record company that underwrote the recording project. In theory, wouldn't
> a "performance right" probably mirror the rights you allude to that the
> composer/writer has and remain vested in the performers despite the record
> company's ownership of the master rights in their performance? (Which, if
> they remained unalienable as writer's rights seem to be, would mean that
> permission would also be required of the performers before public
> broadcast?)

    I'm a bit puzzled. The composer has rights, and may of course assign them to the same record company that puts out a recording. Quite often, though, he won't, since the same composition can be covered by many artists signed by many different record companies.

    I'm unaware of any right that remains vested in the performers despite the record company's ownership of the master rights, except perhaps state right of publicity. Someone -- and this depends on the contractual arrangements -- would have the right in the sound recording. This right would bar others from literally copying the sound recording; but it wouldn't bar them from performing it (assuming they got the composer's permission).

    The composers or writers' rights are alienable.

> Also, when you state that the "permission of the composer is necessary",
> are you referring to the fact that although permission to broadcast sound
> recordings is almost never witheld, broadcasters must pay royalties to the
> performing rights societies (ASCAP/BMI/SESAC)? Or is there another right
> mixed in there?

    Yes, that is what I mean. ASCAP et al. are convenient conduits for granting the permission.

> > There is, though, a reproduction right; sound recordings can't be
> >physically duplicated without the copyright owner's permission.
>
> Here you are clearly referring to the record labels in most cases, yes? Do
> the composers/writers get paid royalties on the copies produced and sold by
> licensees (assuming they didn't also perform on the recording) or do they
> just wait until their songs are broadcast for payment (i.e., from ASCAP)?
> Or is this where compulsory/mechanical licenses kick in to provide X cents
> per copy reproduced to the writer (and his publisher)?

    Record labels are generally, to the best of my knowledge, the owners of rights in sound recordings, though of course anyone could be. Composers do get paid royalties for reproduction, either under compulsory license or through contract (often negotiated through the Harry Fox Agency).

> >Soundalikes, though, are OK.
>
> This is because the copyright owners really own only the rights in the
> versions of the songs performed by their artists, not in all expressions of
> that song.

    Well, I'm not sure that's entirely so. When Coppola makes a movie based on Bram Stoker's Dracula, he also will get only the rights to his version, not to all expressions of the book. Still, if I film a movie that very closely imitates Coppola's work I will be infringing Coppola's copyright, because I'll be copying his version, not just making my own work based on the book. This will be so even if I don't actually take any of Coppola's footage.

    Not so for sound recordings. If I consciously try to make a record that sounds exactly like, say, Sean Colvin singing "Every Breath You Take," I won't be infringing the copyright in Colvin's sound recording. I'll be copying (though not by physically recording the sounds) her expression, not just the original. But I still won't be infringing.

> However, shouldn't soundalikes be licensed by the writer/composers also
> (assuming they weren't parodies or commentary, etc.)?

    Yes.

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>